Takemire v. Novak, 10th Cir. (2003)
Takemire v. Novak, 10th Cir. (2003)
FEB 6 2003
PATRICK FISHER
Clerk
RALPH B. TAKEMIRE,
Petitioner - Appellant,
v.
JUANITA NOVAK; ATTORNEY
GENERAL OF THE STATE OF
COLORADO,
No. 02-1257
D.C. No. 01-D-815
(D. Colorado)
Respondents - Appellees.
ORDER AND JUDGMENT *
Before EBEL, HENRY, and HARTZ, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
final on October 19, 1992, when the time for his filing a notice of appeal of his
conviction expired.
Congress has established a one-year period of limitations for [federal]
habeas petitions. Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998) (citing
28 U.S.C. 2244(d)(1)). By statute, the one-year period of limitations generally
begins running from the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.
28 U.S.C. 2244(d)(1)(A). For prisoners whose convictions became final prior to
April 24, 1996, the limitations period commenced on April 24, 1996, and expired
one year later. See Hoggro, 150 F.3d at 1225-26. However, the one-year
limitations period is tolled while a defendant pursues state post-conviction relief,
see 28 U.S.C. 2244(d)(2), and may also in rare circumstances be subject to
equitable tolling. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998); see
Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000).
Having carefully examined the record on appeal, we conclude the district
court was correct in finding the 2254 petition was untimely. Mr. Takemires
conviction became final prior to April 24, 1996. His third state post-conviction
application was filed on August 24, 1995 and was dismissed on June 13, 1997,
when the trial court granted Mr. Takemires motion to abandon his postconviction challenges. Thus, the one-year limitation period was tolled until Mr.
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